A power of attorney is an immensely powerful legal document that gives someone permission to make decisions for somebody else.
There are very strict legal requirements for completing and registering a power of attorney, and if they are not met, the power of attorney can be null and void.
There has been a great deal of discussion and debate on the current system in place for registering lasting power of attorney, and that it doesn't properly protect or safeguard the most vulnerable people when they need it most.
That is why a new act, The Powers of Attorney Act 2023, has been given royal assent and is set to take shape over the course of 2024.
The act will replace the Mental Capacity Act 2005, and aims to make the LPA process safer, easier, and more suitable for the future, by introducing an online system to register LPAs, check identities and digitise the LPA. So, watch this space - we'll be the first to let you know when this new system is up and running. But for now, the current system and process remains.
So, let's get back to the question at hand. What if you believe that a power of attorney, either before it is registered, or after, does not act in the best interests of the donor? Well the good news is, you can challenge a power of attorney on a number of different grounds, and in this article, we cover them for you.
Can you challenge a power of attorney?
Yes it is possible to challenge the appointment of a power of attorney or challenge a power of attorney if problems occur after an attorney has been appointed.
A power of attorney is a legal document that gives power and control to a person or more than one person to make decisions on someone else’s behalf, known as the donor. The attorney or attorneys appointed will act on the donor’s behalf, and make important decisions about their money and finances, their property and sometimes in cases of mental incapacity, their health and welfare while the donor is still alive.
It’s important to remember that a power of attorney does not mean you don’t have to apply for probate when the person dies. Attorneys do not have distribution rights of the will after the person has passed away, unless they are also named as the executor.
Depending on the donor’s wishes, they may decide to appoint multiple attorneys to act for them, and they can also decide to replace attorneys. If this happens, all attorneys must agree with decisions jointly.
On what grounds can a power of attorney be challenged?
There are two types of lasting power of attorney - property and financial affairs, and health and welfare. These are important to understand as they can have an impact on what grounds you can challenge a power of attorney on.
A property and financial affairs lasting power of attorney gives the attorney appointed the control to make decisions about money and property.
A health and welfare lasting power of attorney gives the attorney the control to make decisions about medical care, care home circumstances and life sustaining or ending treatment. This type of LPA can only be used when the donor has lost mental capacity, and this has been assessed and verified by medical professionals.
You may be able to challenge a power of attorney on the following grounds:
Lack of capacity: If you can show that the person who granted the power of attorney (the donor) lacked mental capacity to understand the full implications of the legal document when they signed it.
Undue influence: If there is evidence to show that the donor was unduly influenced, manipulated or forced into granting the power of attorney against their will.
Fraud or forgery: If the power of attorney is fraudulent or forged, which could be found through discrepancies in signatures or witnesses.
Improper execution: If the power of attorney was not carried out in accordance with the legal requirements, as well as not having the right signatures and witnesses.
Conflicts of interest: If the attorney selected under the power of attorney has a conflict of interest, so stands to benefit personally from their decisions.
Who can challenge a power of attorney?
To answer this simply, any person or parties who have a proper and legitimate interest in the donor’s welfare and financial affairs, and don’t believe the document is not in the best interest of the donor, or suspect the power of attorney has been forced on the person, could have the right to challenge a power of attorney.
This does include healthcare professionals, social workers and advocates who are acting on behalf of a vulnerable person.
So, you can challenge a power of attorney if you are a close relative or next of kin; a named beneficiary in the donor’s will; if you are another attorney or deputy as appointed by the Court of Protection and you want to challenge the actions or decision of another attorney; and any other interested parties as discussed above.
The Office of the Public Guardian (OPG) is responsible for supervising attorneys and deputies in England and Wales, and they have the authority to investigate complaints and concerns raised about the actions or behaviour of attorneys/deputies, and can also challenge a power of attorney if they believe it is necessary.
How to challenge a power of attorney?
If you have been listed as a person to be notified about a power of attorney, you will get a document from the OPG telling you that the donor is planning to register the document, as well as who the appointed attorneys will be. In this case, you could challenge the power of attorney on either factual objection or objection on prescribed grounds.
In both circumstances, you need to tell the Office of the Public Guardian, and you may also have to tell the Court of Protection.
If you are the donor, you can fill in the objection form LPA006.
Factual objection
You can challenge a power of attorney on factual objection if you have been listed as a person to be notified and the donor or an attorney has died; the donor and the attorney were married or in a civil partnership and have now divorced; the attorney has mental incapacity; the attorney has chosen to stop acting on the donor’s behalf; the donor or the attorney has become bankrupt.
To challenge on this basis, you must object within 3 weeks of getting the notification. To object, fill in the objection form LPA007.
Objection on prescribed grounds
You can challenge a power of attorney based on prescribed grounds if the document has already been signed, registered, and you think that it isn’t legally sound; you don’t think the donor had mental capacity; the donor cancelled their power of attorney when they regained capacity; there has been a fraud (someone has forged a signature); the donor was forced into making the document; or an attorney is acting against the donor’s best interests.
To challenge on this basis, you must be able to give evidence to support your objection. To do so, fill in the notification form LPA008.
Not an attorney or ‘person to be told’
If you’re neither the attorney or listed as a person to be told about the lasting power of attorney, you can still challenge the document. Fill in the objection form COP1, copy it and send both the original and the copy to the Court of Protection, along with a cheque for £371 made payable to HM Courts and Tribunals Service.
Address: Court of Protection, PO Box 70185, First Avenue House, 42-49 High Holborn, London, WC1A 9JA
You might be able to get a reduction or exemption of the fee if you’re on means tested benefits or have a low income. Download the form COP44A to see if you are eligible and apply.
What evidence do you need to challenge a power of attorney?
The evidence you need will of course be determined by what grounds you are challenging the power of attorney on.
Let’s look at some examples.
Donor’s lack of mental capacity at the time of granting the document - evidence could include medical records and assessments from healthcare professionals to show the extent of the donor’s incapacity; witness statements from people who were present at the signing and can evidence that the donor didn’t understand the nature and implications of the power of attorney.
Abuse or exploitation of the donor - evidence could include financial records or transactions that are unusual or suspicious and could show that the attorney is not acting in the donor’s best interests.
Fraud or forgery - evidence could include any documents related to the power of attorney, including emails, letters or notes; expert opinions from professionals such as solicitors; witness testimony.
If you do want to challenge a power of attorney, it is wise to speak with a solicitor who is experienced in wills and probate, as they will be able to guide and support you to gather exactly what you need.
Can social services overrule power of attorney?
No, social services do not have the authority to overrule a valid power of attorney.
However, social services may become involved if they have concerns about the welfare or safety of a vulnerable adult who is subject to a power of attorney. In these cases, social services have a duty to safeguard the person’s well-being and may intervene if they believe that the attorney is not acting in the donor's best interests or if there are concerns about abuse, neglect, or exploitation.
Social services might work together with other agencies, such as healthcare professionals, legal authorities, or advocacy services, to assess the situation and take appropriate action to protect the individual's welfare. This could include conducting investigations, providing support services, or applying to the Court of Protection for a review or intervention if necessary.
Ultimately, the Court of Protection has the authority to review decisions made under a power of attorney and has the power to revoke or amend the power of attorney if it is deemed to be in the best interests of the donor. However, this would typically only occur in cases where there is evidence of wrongdoing, abuse, or failure to act in the donor's best interests by the attorney.
Does power of attorney override next of kin?
No, power of attorney does not necessarily override the rights of the next of kin.
The power of attorney gives the appointed attorney limited control on specific matters outlined in the document, such as financial or healthcare decisions. The scope of the attorney's authority depends on the type of power of attorney granted (e.g., lasting power of attorney for property and financial affairs, lasting power of attorney for health and welfare).
Next of kin, on the other hand, refers to the closest living relatives of an individual, such as spouses, children, parents, or siblings. While next of kin may have certain legal rights and responsibilities, such as the right to be consulted about medical treatment decisions, their authority is not automatically superior to that of the attorney appointed under a valid and legal power of attorney.
However, in situations where there is a conflict between the decisions of the attorney and the wishes of the next of kin, the matter may need to be resolved through legal means, such as mediation or by seeking guidance from the Court of Protection.
Ultimately, the Court of Protection has the authority to make decisions in the best interests of the individual if there is a dispute between the attorney and the next of kin.
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